lawskills
Loading
Did you know you can download our entire database for free?


Resources
[more] 

Georgia Caselaw:
Browse
Greatest Hits

Georgia Code: Browse

(external) Findlaw Georgia Law Resources


This site exists because of donors like you.

Thanks!


Lawskills.com Georgia Caselaw
FAIR v. HUDDLE, INC.
37366.
Action for damages. Fulton Superior Court. Before Judge Pharr. August 1, 1958.
NICHOLS, Judge.
The trial court did not err in sustaining the general demurrer to the petition.
Mrs. H. E. Fair sued Huddle, Inc., doing business as Davis Fine Food Cafeteria, and others to recover for injuries allegedly received when a glass door in a cafeteria operated by the defendant Huddle shattered and cut the plaintiff while she was an invitee on such premises. The petition also named as defendants: the manufacturer of the door, the owner of the premises where the door had been installed (Huddle's landlord), and the contractor who, under a contract with the owner of the premises, had installed such door approximately five years before the plaintiff's alleged injuries occurred. It was alleged that the plaintiff had entered the cafeteria operated by the defendant Huddle, purchased, paid for, and consumed her noon meal, that as she approached the door, preparing to leave the premises, she reached out to open the door but before she touched it the door shattered without warning, and that it fell against her body hurling her to the floor causing her injuries. It was further alleged that glass doors of the same make and quality had shattered at other places prior to the plaintiff's injuries, that the glass company negligently allowed the doors to he installed in the cafeteria when it knew or should have known in the exercise of ordinary care that such doors were dangerous to the public, including the plaintiff, in that there was a likelihood they would suddenly shatter, that the glass company did not warn the other defendants that the doors were defective in that they might shatter at any time without warning, that from the time the doors were installed until the date of the plaintiff's injuries the defendant Huddle did not inspect said glass doors for defects in structure, framing, and strains and stresses resulting therefrom, that a reasonable inspection would have disclosed to the defendant Huddle the defective condition of the door and framing, that the defendant Huddle did not warn the plaintiff of the dangerous and defective condition of the door prior to her injuries, that the glass door was defective in that it was not strong enough to stand the strain of ordinary use, that the door was constructed of fragile breakable glass and was insecurely mounted, framed and fastened, that the glass door was under the control of the defendant Huddle who was responsible for its maintenance, management and control in its place of business, and that the defendant Newbanks, the contractor, knew that a door similarly constructed and installed had shattered without any apparent cause but notwithstanding this fact did not notify either of the other defendants of such fact. The petition as finally amended charged the separate defendants with the following acts of negligence. "That in addition to the aforesaid acts of negligence, the defendant Huddle was guilty of the following acts of negligence, to wit: (a) In negligently and carelessly maintaining said door and glass therein in the defective and dangerous condition as herein alleged. (b) In that the door was not properly installed and constructed in a safe manner as herein alleged. (c) In that the said defendant failed to inspect said door and its operation. (d) In negligently failing to warn petitioner of the unsafe and defective condition of said door as herein alleged. (e) In the failure to exercise ordinary care in keeping its premises safe as herein alleged. That in addition to the aforesaid acts of negligence the defendant Glass Company was guilty of the following acts of negligence, to wit: (a) In manufacturing glass doors that were unsafe after it had knowledge of the dangerous condition of said doors. (b) In selling and offering for sale to the general public generally, including the defendant LeBey [the landlord], defendant Huddle and defendant Newbanks, glass doors which it knew, or in the exercise of ordinary care should have known, were unsafe and defective, and not suited for the use for which they were intended. (c) In failing to warn the
other defendants and petitioner herein that said doors were defective, unsafe and unsuited for the use for which they were intended, when it knew, or in the exercise of ordinary care, should have known of the dangerous condition of its doors as herein alleged. That in addition to the aforesaid acts of negligence the defendant Newbanks was guilty of the following acts of negligence, to wit: In failing to warn the other defendants herein when he learned of the unsafe condition of doors made from the same type of glass. That in addition to the aforesaid acts of negligence, the defendant LeBey was guilty of the following acts of negligence, to wit: (a) In using materials, namely the glass door, in the remodeling of his premises which was not strong enough to stand the strain of ordinary use when he knew, or in the exercise of ordinary care should have known, of the defective and unsafe condition of said glass door as herein alleged. (b) In not warning petitioner and others who might have occasion to use the said door that same was unsafe and defective when he knew, or in the exercise of ordinary care should have known, that said door was in fact unsafe and defective as herein alleged."
The plaintiff assigns error on the judgment of the trial court sustaining the general demurrer of the defendant Huddle, Inc.
1. No question is presented in the present case as to whether the petition set forth a cause of action as to any defendant other than the defendant Huddle, Inc. Neither the writ of error nor the record discloses whether any demurrers were interposed by these other defendants and no exception is taken to any judgment with reference to them, and while it is stated in the briefs of the parties of record in this court that the trial court had previously sustained their general demurrers, no question with reference to such other defendants is here for decision.
2. The plaintiff's petition does not show any act on her part which could be construed as showing that her injuries were caused by any lack of ordinary care on her part. However, the mere fact that she was injured without fault on her part does not authorize a recovery, for it is the negligence of the defendant in a tort action that authorizes the recovery of damages by the plaintiff and not merely the injury, for if neither party is negligent, the occurrence is an "accident" in the eyes of the law, and no recovery is authorized in such cases. See Georgia Power Co. v. Woodall, 43 Ga. App. 172, 174 (158 S. E. 367), and cases cited. Nor does the doctrine of res ipsa loquitur have any application to pleadings. Eaton v. Blue Flame Gas Co., 91 Ga. App. 510 (86 S. E. 2d 334). Accordingly, the petition in the present case cannot be aided by the doctrine of res ipsa loquitur , nor does the mere fact that the plaintiff was injured while she was an invitee on the premises of the defendant Huddle authorize a recovery.
3. The plaintiff contends that on general demurrer the petition should not be dismissed when there is any allegation of negligence, and relies on that line of cases exemplified by Hudgins v. Coca Cola Bottling Co., 122 Ga. 695 (50 S. E. 974), and Southern Roadbuilders, Inc. v. Associated Petroleum Carriers, 95 Ga. App. 263, 265 (97 S. E. 2d 629), where it was held: "In the absence of allegations that make it affirmatively appear that the plaintiffs' losses were caused by their own negligence, simple allegations of negligence are sufficient as against general demurrer."
This contention is without merit in the case sub judice, for while the above quoted rule is applicable where the petition deals only with the actions of the plaintiff and one defendant, it is not necessarily applicable in cases where two or more defendants are alleged to be joint tortfeasors, or where the actions of persons other than the defendant are pleaded and the allegations with reference to the actions of such persons are alleged in such a way as to show inconsistencies that are not compatible, e.g., where some of the allegations show that A alone is the tortfeasor and other allegations show that the tort was committed by A and B as joint tortfeasors, the petition will be construed as alleging only that the tort was committed by A and that no cause of action is set forth against B. "When a plaintiff pleads his case in the alternative, one version of which is good and the other not, his petition will on demurrer be treated as pleading no more than the latter, since it will be construed most strongly against him." Richards & Associates, Inc. v. Studstill, 212 Ga. 375, 377 (93 S. E. 2d 3), and cases cited.
The petition in the case sub judice alleges that the defendant Huddle failed to inspect the glass doors for defects in structure, framing, strains and stresses resulting therefrom, and that a reasonable inspection would have disclosed to such defendant the defective condition of the doors and framing. It was also alleged that the manufacturer of the glass doors knew that other doors of the same make and quality had shattered in other places and negligently allowed said glass doors to be installed in the cafeteria knowing that there was a likelihood that they would suddenly shatter without warning, and that such doors were defective in that they were not strong enough to stand the stress of ordinary use. Were the doors defectively manufactured, or were they negligently installed, or was it negligence in the maintenance of the doors that caused one of them to shatter suddenly without warning? The petition alleges all three theories in the alternative and under the decision of the Supreme Court in Richards & Associates, Inc. v. Studstill, 212 Ga. 375, supra, the petition must be construed, when considering the general demurrer of the defendant Huddle, as alleging that the doors were defectively manufactured in that they were not strong enough to stand the stress of ordinary use, which defect would not have been disclosed by inspection. Accordingly, as against general demurrer, no cause of action was alleged against the defendant Huddle, Inc., and the trial court did not err in sustaining the general demurrer of such defendant.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.
James M. Embry, Dunaway, Embry & Shelfer, contra.
Augustus M. Roan, Robert M. McCartney, for plaintiff in error.
DECIDED OCTOBER 27, 1958.
Saturday May 23 01:13 EDT


This site exists because of donors like you.

Thanks!


Valid HTML 4.0!

Valid CSS!





Home - Tour - Disclaimer - Privacy - Contact Us
Copyright © 2000,2002,2004 Lawskills.com